Milne v. Toronto Police Services Board, 2013 HRTO 485

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Milne

Applicant

-and-

Toronto Police Services Board and Chief of Police, Toronto Police Service

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: March 22, 2013 Citation: 2013 HRTO 485 Indexed as: Milne v. Toronto Police Services Board

APPEARANCES

Lisa Milne, Applicant

Grace Permaul, Counsel

Toronto Police Services Board and Chief of Police, Toronto Police Service, Respondents

Darragh Meagher, Counsel

Introduction

1This Application, filed on April 18, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination in employment on the basis of disability.

2On August 18, 2011, the respondents filed a Response to the Application wherein they sought to dismiss the Application on the following grounds: (a) many of the allegations between 2006 and April 20, 2010 fall outside of the one-year limitation period in the Code; (b) the applicant's return to work on April 20, 2010 cannot, in and of itself, contravene the Code; (c) the Application did not name a proper respondent; and (d) the allegations set out in the Application do not disclose a series of incidents as contemplated by section 34(1)(b) of the Code.

3By letter dated December 11, 2012, the Tribunal directed that a preliminary hearing be held to determine whether the Application should be dismissed in whole or in part because of the delay in filing the Application. A preliminary hearing on the issue of delay alone was conducted by teleconference on March 13, 2013 and all parties participated.

4After the preliminary hearing, the applicant filed further submissions on the issue of delay with the Registrar of the Tribunal. Because these submissions were sent after the hearing, they were not forwarded to me and have not been considered for this Decision.

5The following facts are taken from the pleadings filed by the parties in this matter and the submissions of counsel during the preliminary hearing.

BACKGROUND

6On June 5, 1990, the applicant commenced employment with the Toronto Police Services as an Intermediate Programmer/Analyst in the Information Technology Services Section.

7At some point during her employment, the applicant suffered a work-related injury that became worse in 2006. In 2007, the Workplace Safety Insurance Board determined the applicant should be accommodated in her Analyst position.

8The applicant was absent from work for extensive periods of time from 2006 to 2009. While the applicant claims her absenteeism was the result of the Toronto Police Services' failure to accommodate her workplace injury, she does not assert a contravention of the Code for this period. Rather, the applicant relies on this time period as part of the factual narrative that led to the subsequent events that form the substance of her Application.

9In the Application, the applicant states that on April 5, 2009, she was called by her manager and was "banned" from work. In June 2009, the applicant received correspondence from the Labour Relations department of the Toronto Police Services advising her to remain at home until a suitable position could be found and to undergo an independent medical assessment. That medical assessment took place in September 2009. In April 2010, the applicant was requested to report to work after being off work without pay for over one year. On April 20, 2010, the applicant returned to work in the position of Data Entry Clerk. The applicant asserts this job was a demotion from her former position and as such, was inappropriate accommodation.

10The applicant alleges that the respondents discriminated against her when she was banned from work on April 5, 2009, was off work for more than one year without pay and when she returned to a job that was not appropriate on April 20, 2010. She filed her Application with the Tribunal on April 18, 2011. The respondents concede the return to work allegation of April 20, 2010 is timely. They submit the remaining allegations are untimely and should be struck from the Application.

ANALYSIS

11Section 34(1) of the Code requires that applications be filed within one year after the incident to which the application relates or if there was a series of incidents, within one year after the last incident in the series. Section 34 states:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

12The Tribunal has held that the word "series" in the phrase "series of incidents" under s. 34(1)(b) of the Code, refers to "a number of things or events of the same class coming one after another in spatial or temporal succession". The Tribunal has also held: there must be some connection or nexus between the incidents that are alleged to form the series; a gap of more than one year between incidents is usually not considered to be part of the same series of events; and a series cannot be comprised of incidents relating to discrete and separate issues. See Pakarian v. Chen, 2010 HRTO 457, at para. 25 and Baisa v. Skills for Change, 2010 HRTO 1621, at paras. 16 and 22.

13The applicant alleges that the respondents breached their duty to accommodate when they "banned" her from work on April 5, 2009, when they kept her off work for more than one year without pay, and when they returned her to an unsuitable position on April 20, 2010. The applicant refers specifically to the respondents' request for an independent medical examination in June 2009 and the examination that took place in September 2009. These events interrupt the one year gap between April 5, 2009 and April 20, 2010 and are relevant to the allegation that the respondents delayed acting on the information it received in September 2009, causing the applicant to remain off work for over one year without pay. This is a separate allegation of discrimination and is not the consequence of the original decision to ban the applicant from the workplace on April 5, 2009, as submitted by the respondents. See Labao v. Toronto Police Services Board, 2012 HRTO 1529 at para. 19 and Garrie v. Janus Joan Inc., 2012 HRTO 1955.

14In my view, the incident of April 5, 2009 and the events between April 5, 2009 and April 20, 2010 have a nexus to the timely event of April 20, 2010. These incidents relate to an allegation that the respondents failed in their duty to accommodate the applicant by: (a) requiring her to stay home without pay while they attempted to find a suitable position; (b) taking more than one year to return her to work; and (c) returning her to work in an unsuitable position. These separate incidents are sufficiently proximate in time and similar in nature to be considered a series of incidents for the purposes of section 34 of the Code. Because I have found that the applicant has established a series of incidents within the purview of section 34(1)(b), the allegations are timely. As such, I do not need to assess "good faith and no substantial prejudice" for the purposes of section 34(2).

ORDER

15The respondents' request to dismiss the Application on the basis of delay is dismissed. The Tribunal will continue to process this Application.

16The applicant has filed a Request for Order During Proceedings to amend the Application. The respondents have 14 days from the date of this Interim Decision to deliver their response to this Request.

17The respondents have expressed the view that to proceed with the Application is an abuse of process because of an earlier grievance that has been withdrawn. If the respondents wish to proceed with this argument, a Request for Order During Proceedings must be filed.

18I am not seized.